Affirmative Action still not "decided"

Today, the U.S. Supreme Court released its Opinion of the Fisher v. University of Texas at Austin et al. case, also known as our time's Affirmative Action case.

For the non-lawyers, my reading is that the Supreme Court held that a university gets deference in deciding and determining its diversity mission...but University does not get deference in deciding how to go about achieving diversity. Judicial review (strict scrutiny) is required. The case now goes back to lower courts to review whether the university went about achieving their mission in a "narrowly-tailored" (as race-neutral as possible) way.

So, the Court did not do much "deciding" today on the merits on the case (which means they did not get into whether "diversity" is actually a compelling interest, except Justice Thomas who long ago decided his stance that no use of race is acceptable to him) but rather did some clarifying on what the judicial standard is for college admissions cases. The initial Plaintiff, Fisher, did not ask the Court to decide whether past cases on college admissions (Grutter, especially) needed overturning -- a point which Scalia writes separately to justify as his reason for joining the Court's decision on this case. 

I did find some of the Court's point particularly interesting.  First, the Court actually said that universities are not required to exhaust all the race-neutral means of admissions processes that they can think of.  Instead, the Court said that universities are required to have serious, good faith consideration of race-neutral means of admissions and then justify why those alternative admissions process would not work.  570 U.S. ___ at 10 (2013).  Further, the Court reemphasized that the university's decision must be a workable decision, and tipped its hat that an administratively viable solution might be a consideration in the narrowly-tailored analysis that will follow once the lower courts sort out the judicial review.  570 U.S. ___ at 11 (2013).  Finally, the Court also restated that the judicial standard of strict scrutiny not be "fatal in fact"--which means that it cannot be the case that each time a court reviews a program by which the state has taken action or made some type of determination, a court later strikes it down and says that it was not good enough to muster the constitutional protections of the 14th Amendment.  In fairness, the Court also stated that the strict scrutiny analysis cannot also be "feeble" such that state action gets deference or an easy pass in its process.  570 U.S. ___ at 13 (2013).  

For me, I'm kinda happy that the deciding did not come today (dunno if my heart could take it), but in line with many of my colleagues' sentiments, I don't know whether the odds are going to be better years from now... And, I certainly would have loved to hear Justice Ginsburg on the merits of this case another, wonderful time.

As always, I'm providing the actual Opinion:

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